Last month, my partner, Matt Nichols, I, along with other outstanding legal minds, spoke in Freeport at a seminar for lawyers on the topic of defending OUI cases in Maine. Part of the lecture I gave concerned a 2013 United States Supreme Court case called Missouri v. McNeely, 133 S.Ct. 1552. McNeely is a Fourth Amendment search warrant case dealing with nonconsensual blood testing in drunk-driving cases.

Tyler McNeely was stopped by a state trooper for speeding and crossing the centerline. After performing poorly on the Standardized Field Sobriety Tests, he declined a portable breath test and was arrested for OUI. At the station, he refused to take a breath test and was subsequently transported to the hospital for a blood draw. He did not consent to have his blood drawn, nor did the officer attempt to secure a search warrant. Nevertheless, his blood was subsequently drawn, which alleged a high blood alcohol content.

I will save you the procedural history, but it’s safe to say that on appeal, the Missouri state prosecutors went for a broad, sweeping rule of law that would allow police officers to draw blood under any circumstance, without a warrant or without the consent of the person arrested. They refused to try finding a middle ground; they wanted it all their way. They took all their chips and pushed them to the middle of the table. The state prosecutors argued that the metabolization of blood within an individual’s body, over time (i.e. while the Arrestee was driving, interacting with the officer, doing field sobriety tests, etc.), was causing evidence of intoxication to dissipate (be destroyed within the body). As a result, they argued, this destruction of evidence caused an “exigent circumstance,” an exception to the Fourth Amendment, thus no warrant should be required.

An “exigent circumstance” arises when a law enforcement officer is faced with a situation where, for example, the immediate loss of evidence, immediate danger or harm to an individual (health or safety issue) will occur if the officer takes the time to get a search warrant.

McNeely’s attorney argued that a blood draw is a search pursuant to the Fourth Amendment that does not constitute an exigent circumstance and, absent the Arrestee’s consent, requires the arresting officer to get a search warrant prior to the blood draw being performed. McNeely’s lawyer argued that in the modern era of electronics, obtaining a warrant is a simple and necessary safeguard needed to protect the rights of citizens.

The United States Supreme Court agreed and ruled that the body’s natural means of dissipating alcohol in the bloodstream does not give rise to an exigency that would justify a warrantless blood draw in every case.

In 1966, in Schmerber v. California, the Court said no warrant was required to take blood without the Arrestee’s consent after an accident in which the driver and a passenger had been injured. The Court cited investigation time, travel time to the hospital, and the time it took to get a warrant as factors justifying a warrantless blood draw. Those factors are much less significant now. The Court noted that almost 50 years later, there are approximately 30 states already using electronic warrants; a far cry from the Schmerber analysis.

In McNeely, the Court did go on to say that there are certainly circumstances that would justify a warrantless blood draw, and those circumstances should be evaluated for their constitutional soundness on a case by case basis, invoking the “totality of the circumstances” analysis to determine if the claimed exigency is valid. I fully expect the government to take a run at the McNeely decision with a death case or a case involving horrific injury that stirs the national conscience.

If you have been accused by the police in Maine of OUI, “Operating Under the Influence of Alcohol or Drugs,” DUI, DWI, Habitual Offender (HO), Operating under Suspension (OAS), possession of a controlled drug or any alleged motor vehicle or criminal offense, call me today at 207-283-6400 and arrange a free consultation in my Saco office at 16 Middle Street (behind the Saco Post Office).

I am pleased to announce that I just completed the 2014 Summer Session hosted by the National College for DUI Defense on the grounds of Harvard Law School on July 24-26, 2014. It featured some of the premier Operating Under the Influence (OUI/DUI/DWI) defense attorneys in the country on the faculty, and provided a rigorous curriculum that crossed many skill levels and allowed the participants to learn from the best while having the opportunity to sharpen their trial skills.

I am a Sustaining Member of the National College for DUI Defense and a member of the faculty. The NCDD is a non-profit organization dedicated to the education of criminal defense attorneys and the public about OUI/DUI/DWI laws and practice.

If you have been accused in Maine of OUI, “Operating Under the Influence of Alcohol or Drugs”, or possession of a controlled drug or any alleged motor vehicle or criminal offense, feel free to call Attorney John Webb today at 207-283-6400 and arrange a free consultation to discuss your case.

Nichols & Webb has always had a strong sense of community service. Whether it’s volunteering, contributing to community causes or defending the constitutional rights of our friends and neighbors, we have remained dedicated to Maine since our youth. While I (@MaineOUI) am involved in other causes, the focus of my community service has found itself […]

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The Supreme Court recently decided a case Missouri v. McNeely, 567 U.S. ____ (2012) holding that police officers cannot normally conduct blood-alcohol tests without a warrant. After being stopped by a police officer for speeding and crossing the centerline the officer noticed several signs that McNeely was intoxicated, including McNeely’s bloodshot eyes, his slurred speech, […]

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I am proud to report that this past weekend I was a Demonstration Speaker and Group Instruction Team member at the Summer Session of the National College of DUI Defense, July 26th to the 28th, hosted by Dean George Stein and held at Harvard Law School in Cambridge, Massachusetts. www.NCDD.com The National College of DUI […]